Opinion · Court of Appeals for the Second Circuit

Decorative Stone Co. v. Building Trades Council of Westchester County

13 F.2d 123

Type: Opinion
Court: Court of Appeals for the Second Circuit
Jurisdiction: Federal
Date: 1926-06-01
Topic: intellectual-property-and-technology

PER CURIAM. Several questions of importance and difficulty have been, argued, but wo find ourselves able to express opinion on one point only, viz. that no error was committed in refusing injunctive relief upon ex parte affidavits alone. The law and practice in this circuit is, we think, well settled. This court is, to say the least, disinclined to determine questions of fact upon ex parte affidavits. Hadden v.

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DECORATIVE STONE CO. v. BUILDING TRADES COUNCIL,13 F.2d 123(2nd Cir. 1926)

DECORATIVE STONE CO. v. BUILDING TRADES COUNCIL OF WESTCHESTER COUNTY et

al.

No. 383.

Circuit Court of Appeals, Second Circuit.

June 1, 1926.

Appeal from the District Court of the United States for the Southern District of New York.

Suit for injunction by the Decorative Stone Company against the Building Trades Council of Westchester County and others. From an order denying an injunction pendente lite, plaintiff appeals Order affirmed.

Gleason, McLanahan, Merritt Ingraham, of New York City (Walter Gordon Merritt, of New York City, of counsel), for appellant.

Sydney A. Syme and William S. Coffey, both of Mt. Vernon, N.Y., for appellees.

Before ROGERS, HOUGH, and MACK, Circuit Judges.

PER CURIAM.

Several questions of importance and difficulty have been argued, but we find ourselves able to express opinion on one point only, viz. that no error was committed in refusing injunctive relief upon ex parte affidavits alone.

The law and practice in this circuit is, we think, well settled. This court is, to say the least, disinclined to determine questions of fact upon ex parte affidavits. Hadden v. Dooley, 74 F. 429, 20 C.C.A. 494. To entitle a complainant to a preliminary injunction, he must present a clear title, or one free from reasonable doubt. Stevens v. Missouri, etc., Co., 106 F. 771, 45 C.C.A. 611; Cutter Co. v. Metropolitan Co. (C.C.A.) 275 F. 158. Where the bill and answer in a suit present debatable questions, it is within the discretion of the court to refuse to grant a preliminary injunction on affidavits. Horsman v. Kaufman (C.C.A.) 286 F. 372. Unless such discretion be abused in granting or denying injunction, the action will not be reviewed on appeal. Goldwyn Corp. v. Goldwyn (C.C.A.) 296 F. 391.

We think debatable questions were presented, and that the issuance of injunction was a matter of discretion, and that discretion was not abused; therefore the order contains no error. We express opinion on no point other than the foregoing.

Order affirmed.Page 124